Hoskins v. King et al

Filing 134

ORDER granting Siemens' 80 Motion for Summary Judgment; denying Hoskins' 87 Motion to Compel; finding as moot Siemens' 83 Motion for Protective Order and request for costs; denying Wheels, Inc.'s 121 motion for final judgm ent; denying King's 123 Motion for Summary Judgment concerning punitive damages; granting King's 122 Motion for Summary Judgment regarding the survival claim; and notifying parties the remainder of the issues in the case are scheduled for the January/February term of court with jury selection on 01/12/10. Signed by Honorable Joseph F Anderson, Jr on 11/16/09.(bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION C h e ryl Hammond Hoskins, individually ) a n d as personal representative of the ) e s ta te of Thomas R. Hoskins, ) ) P l a in tif f , ) ) vs. ) ) S h a ro n Snipes King; Wheels, Inc.; and ) S ie m e n s Medical Solutions USA, Inc., ) ) D e f e n d a n ts . ) ) C /A No.: 3:08-2442-JFA

ORDER

T h i s matter comes before the court on the following motions: 1) 2) 3) 4) 5) S iem en s' motion for summary judgment [dkt. # 80], S iem en s' motion for protective order [dkt. # 83], H o sk in s' motion to compel [dkt. # 87], W h ee ls Inc.'s motion for final judgment [dkt. # 121], K in g and Siemens' joint motion for partial summary judgment as to punitive d a m a g e s [dkt. # 123], and K in g and Siemens' joint motion for partial summary judgment as to Cheryl H o sk in s' survival claim [dkt. # 122].

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T h e parties have fully briefed each motion and the court heard oral argument on November 2 , 2009. This order serves to announce the court's ruling on the motions in this case. I. F a c tu a l and Procedural Background S h a ro n King ("King") struck and killed Thomas Hoskins at approximately 2:15 p.m.

o n October 21, 2007 while he was cycling on U.S. Highway 521 between Lancaster and C h a rlo tte . Cheryl Hoskins ("Hoskins"), as the personal representative of the estate of her h u s b a n d Thomas Hoskins, brought suit against King, Wheel's, Inc. ("Wheels"), and Siemens M e d ic a l Solutions USA, Inc. ("Siemens") for damages arising out of the accident. At the tim e of the accident, King drove a Chrysler Pacifica automobile owned by Wheels and leased b y Siemens for King's use. Siemens provided King the use of the car as a function of her d u ties as a Field Service Tech 2 servicing medical equipment for Siemens and she opted to p a y an additional monthly fee to use the vehicle for personal use. T h e record indicates that King was talking on her Siemens-issued mobile phone with h e r close friend Beth Lichtenberger immediately before the incident and that she was in the p ro c e s s of attending to her dogs in the front seat or manipulating the car stereo when she s tru c k Thomas Hoskins. No facts have been alleged to suggest that King was under the in f lu e n c e of any alcohol or drugs during the time period at issue. No evidence suggests that s p e e d in g played any role in the accident. King appears to have veered out of her lane at the tim e she struck Thomas Hoskins. A t the time of the incident, King was returning home to North Carolina from her p a re n t's home in Lancaster, South Carolina, where she attended a belated wedding reception h e ld in her honor. The week before the accident, King took scheduled vacation leave in a n tic ip a tio n of the wedding celebration and had removed the tools she used to service m e d ic a l equipment from her car. King fueled the car using her Siemens-issued gas card 13

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m in u tes before the incident. K in g 's driving records while at Siemens reveals tickets for speeding issued on March 1 4 , 2007 and March 11, 2005. She was also involved in an automobile collision on January 2 2 , 2007 resulting in no injury, which occurred during work hours and may have occured w h ile King spoke on her mobile phone. In her initial complaint, Hoskins asserted negligence against King seeking actual and p u n itiv e damages for wrongful death, and the pain and suffering of Thomas Hoskins, as the p e rs o n a l representative of his estate. Hoskins also alleged negligent training and supervision a g a in s t Wheels Inc. In her amended complaint, Hoskins repeated the allegations of the initial c o m p la int and added Siemens as a defendant, seeking damages vicariously under the doctrine o f respondeat superior and directly under a theory of negligent supervision. II. D is c u ss io n A. S ie m e n s ' Motion for Summary Judgment is Granted 1. H o sk in s Asserts Liability under a Theory of Respondeat Superior

Siemens moves for summary judgment on the theory that King was not on company b u s in e ss and owed Hoskins no duty of care as a third party. In order to establish negligence in South Carolina, a plaintiff must establish: (1) a duty the defendant owes the plaintiff; (2) a breach of that duty by the defendant by a negligent act or omission; (3) that such breach w a s the actual and proximate cause of the plaintiff's injury; and (4) injury or damages. Doe v . Marion, 645 S.E.2d 245, 250 (S.C. 2007). "If there is no duty, then the defendant in a

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n e g lig e n c e action is entitled to a directed verdict." Steinke v. Dep't. of Labor, Licensing and R e g u latio n , 520 S.E.2d 142, 149 (S.C. 1999). South Carolina recognizes five exceptions to th e general rule that there is no general duty to control the conduct of another: (1) where the d e f en d a n t has a special relationship to the victim; (2) where the defendant has a special relatio n sh ip to the injurer; (3) where the defendant voluntarily undertakes a duty; (4) where th e defendant negligently or intentionally creates the risk; and (5) where a statute imposes a duty on the defendant. Marion, 645 S.E.2d at 250. Under the second exception, South C a ro lin a recognizes the doctrine of respondeat superior, which holds the master liable for the a c ts of his servant. In order to establish liability under respondeat superior, a plaintiff must establish that th e servant was acting about the master's business and within the scope of her employment. L a n e v. Modern Music, Inc., 136 S.E.2d 713, 716 (S.C. 1964). "If a servant steps aside from th e master's business for some purpose wholly disconnected with his employment, the re la t io n of the master and servant is temporarily suspended; and this is so no matter how s h o rt the time, and the master is not liable for his acts during such time." Id. If the employee is going about her own business, then she cannot render the master liable. Id. At the time of the fatal collision between King and Thomas Hoskins, King was either sp e a k in g to her friend on her mobile phone, adjusting the stereo, talking to her two dogs in the passenger seat, or some combination of all three. The purpose of her trip was to return h o m e after attending her own wedding reception. Hoskins alleges no facts that would

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s u g g e st that King was in the scope of her employment for Siemens at the time of the a c cid e n t. The facts taken in the light most favorable to Hoskins only support an inference th a t King may have failed to comply with Siemens' policies regarding the declaring of p e rs o n a l use of the car and the corporate gas card, but neither of these facts support an in f e re n c e that she was acting in the scope of her employment on that Sunday. Accordingly, th e court finds that King was outside the scope of her employment, and unable to bind S iem en s in tort under a theory of respondeat superior. 2. H o s k in s Asserts Supervisory Liability Against Siemens

H o s k i n s asserts a direct claim of liability in her negligent supervision claim against S i em e n s under Restatement Second of Torts § 317, as adopted in South Carolina. In D e g e n h art v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992), the South Carolina S u p rem e Court found that while the common law ordinarily imposes no duty to act, there are ce rtain circumstances where an employer may be held liable for negligent supervision. In D e g e n h art, the court cited to § 317, and found that an employer may be held liable for n e g lig e n t supervision if the employee, outside the scope of her employment, intentionally h a rm s another when she: (1) is upon the premises in possession of the employer or upon w h ic h the employee is privileged to enter only as his employee, or (2) is using a chattel of th e employer and (a) knows or has reason to know that he has the ability to control his e m p lo ye e , and (ii) knows or should have known of the necessity and opportunity for e x e rc is in g such control. The South Carolina Supreme Court recently revisited this duty and

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sta ted that: I n circumstances where an employer knew or should have known that its e m p lo ym e n t of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer acted negligently in entrusting its e m p lo ye e with a tool that created an unreasonable risk of harm to the public. J a m e s v. Kelly Trucking, Co., 661 S.E.2d 329, 330 (S.C. 2008). Accordingly, the question is whether Siemens knew or should have known facts about King that would suggest that en tru stin g King with a cell phone and automobile would pose an unreasonable risk of harm to the public. When Siemens hired King, she had no points on her driver's license. However, from th e time of her hiring to the time of the accident that killed Hoskins, King received two s p e e d in g tickets: one on March 11, 2005 (a 5-points for speeding in a work zone), and one o n March 14, 2007 (a 2-point violation for speeding). Additionally, on January 22, 2007, K in g rear-ended another car while exiting the interstate while possibly using her mobile p h o n e . King reported that the accident happened at 11:00 a.m., but her phone records show a n incoming call from the non-emergency line at the Greensboro, NC police department at 1 0 :5 3 -- p re su m a b ly concerning the accident. Prior to the incoming call from the police d e p a rtm e n t, King's phone records show that her phone remained in use from 10:29 a.m c o n tin u o u s ly until 10:51 a.m. The court finds it reasonable to infer that King was on the p h o n e when she hit the other car. Siemens may have known or had reason to known about th e tickets and the January 22, 2007 accident. However, even if Siemens knew or should h a v e known that King was not the best driver, King's past conduct does not rise to a level 6

a t which Siemens would be put on notice that she presented an unreasonable risk of harm to th e public. King has driven many miles while working for Siemens, and her driving record, w h ile blemished, did not foreshadow the event that brought this case before this court. Hoskins failed to present any evidence that speed played a role in the death of Thomas H o s k in s and, accordingly, the two speeding tickets may be minimized for the purposes of the c o u r t' s § 317 analysis. Accordingly, Hoskins would have this court find that a low-speed c o llisio n , resulting in no injury or property damage, and that appears to have occurred while K in g spoke on the phone, suffices to put Siemens on notice that King presented an undue risk o f harm to the public. This, the court will not do. Accordingly, because the record does not d e m o n s tra te a sufficient nexus between conduct that would put Siemens on notice of a need to control King and the conduct that caused the harm suffered in this case, the court d is m is s e s Hoskins' claim of supervisory liability. B. H o s k i n s ' Motion to Compel is Denied and, Based on the Foregoing, Siemens' M o tio n for Protective Order is Moot

In Hoskins' motion to compel, she seeks information concerning Siemens' policies a n d procedures regarding the use of company automobiles and cell phones, Siemens' e n f o rc e m e n t of those policies, Siemens' knowledge of the risks of the joint use of phones and c a rs , profits related to products sold to mitigate those risks (such as headsets), and prior r e c o rd s of employee accidents while driving company cars. T h e general rule provides that parties may obtain discovery regarding any n o n p riv ile g e d matter that is relevant to any party's claim or defense and such information 7

n e e d not be admissible at trial if the discovery appears reasonably calculated to lead to the d is c o v e ry of admissible evidence. Fed. R. Civ. P. 26(b)(1). Where information sought does n o t pertain to a claim or defense, such information cannot be compelled on an assertion of re le v a n ce . Hoskins asserts two claims against Siemens: the first under the doctrine of re sp o n d e a t superior, and the second under a theory of direct liability for negligent s u p e rv is io n , as adopted in Degenhart. Accordingly, for the information sought to be d is c o v e ra b le , it must be relevant to these claims. King must have collided with Thomas Hoskins while in the scope of her employment in order for Hoskins to prevail on her respondeat superior claim. Based on the evidence in th e record, the court found above that King was not going about Siemens business at the time o f the accident, nor for that matter at any time close to the accident. Any evidence weighing o n this determination would necessarily concern King's actions leading up to and including th e time of the accident. No argument advanced by Hoskins concerning the desired d is c o v e ry touches on the existence or potential existence of any information useful to the c o u rt in determining whether King collided with Thomas Hoskins while in the scope of her e m p lo ym en t with Siemens. Accordingly, for the purposes of the respondeat superior claim, th e court finds the requested evidence irrelevant. F o r Hoskins to prevail on her supervisory liability claim, she must show that Siemens k n e w or should have known that entrusting King with a car and a cell phone presented an u n d u e risk of harm to the public. Accordingly, inquiries into this claim must focus on King's

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c o n d u c t as it relates to her use of the Pacifica and cell phone. To that end, inquires c o n c ern in g the collisions of other employees; general employee compliance with company a u to m o b il e and cell phone usage policies; enforcement of such polices; and the Siemens ra tio n a le for creating such policies fail to shine light on the merits of the negligent s u p e rv is io n claim. Hoskins argues that any information Siemens possessed regarding any dangers p re se n te d by operating an automobile in conjunction with a cell phone should serve to charge S ie m e n s with a heightened duty to supervise its employees. Hoskins, in effect, argues that su c h knowledge requires Siemens to accurately forecast a high-speed collision resulting in tw o fatalities from a minor, low-speed collision resulting in no property damage or personal in ju ry. However, the caselaw does not support Hoskins' position. Supervisory liability u n d e r Degenhart and its progeny requires the court to focus specifically on what the e m p lo ye r knew or should have known about the specific conduct of the employee in q u e stio n . See, e.g. Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292 (S.C. 1996)(finding that sim ilar conduct resulting in harm sufficed to put defendant on notice under Degenhart); C h a rle s to n Registry for Golf and Tourism, Inc. v. Young Clement Rivers and Tisdale, LLP, 5 9 8 S.E.2d 717, 723 (S.C. App. 2004)(finding supervisory liability inappropriate where the r e c o r d contained no evidence that the defendant knew, or should have known, of its e m p lo ye e ' s conduct causing the alleged harm); Brockington v. Pee Dee Mental Health C e n te r, 433 S.E.2d 16 (S.C. App. 1993)(concluding that no evidence existed to support the

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c o n te n tio n that the Center knew or should have known of the necessity to exercise control o v e r the employee prior to the time he assaulted the patient); Doe by Doe v. Greenville H o sp ital System, 448 S.E.2d 564 (S.C. App. 1994)(holding that the hospital knew or should h a v e known of the necessity to control based on a similar prior instance of inappropriate s e x u a l conduct with a minor). Hoskins invitation to the court to subscribe to foreign caselaw notwithstanding,1 what g e n e ra l knowledge Siemens may have possessed concerning any safety issues arising from the contemporaneous use of an automobile and mobile phone matters little to the court's a n a lys is . The the correct inquiry focuses on Siemens' specific knowledge, or duty to have k n o w led g e , as to King's use of Siemens' chattels. Hundreds of millions of drivers use their m o b ile phones while driving each day without incident. The prudence of doing so, and d a n g e r to the public, depends on the individual and the conditions, and liability must re m a in e d premised on the interplay between these variables, not on the possession of a c ad e m ic knowledge by a third party. Whether Siemens possesses knowledge concerning a n y risks associated with the simultaneous use of cell phones and automobiles has no bearing o n whether Siemens possessed or should have possessed knowledge that King's use of her S iem en s' chattels constituted a danger to the public. For the foregoing reasons, the court

Hoskins cites to Bradley v. H.A. Manosh Corp., 601 A.2d 978 (Vt. 1991) and Foradori v. Harris, 523 F.3d 422 (5th Cir. 2008)(interpreting Mississippi's adoption of § 317) in her reply to King's response to her motion to compel to support her argument that the type of conduct engaged in can constitute notice. South Carolina has yet to enunciate such a rule in its interpretation of § 317. 10

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d e n ie s Hoskins' motion to compel. Moreover, because the court granted Siemens' motion f o r summary judgment above as to both claims against it, the court finds Siemens' motion f o r protective order moot. C. W h e e ls , Inc.'s Motion for Final Judgment is Denied

W h e e l's Inc. has moved for the court to enter final judgment in this case dismissing it from this action. Under Fed. R. Civ. P. 54(b), a court has the power to dismiss any of s e v e ra l parties when the court finds no just reason for delay. However, this power must be e x e rc is e d in light of the strong policy against piecemeal appeals. Wheels, Inc. argues that th e facts supporting this court's order dismissing all claims against it have not changed and n o reasons remain not to grant it peace and finality. Hoskins argues that Wheels, Inc. has f a ile d to provide any evidence concerning any harm or hardship it would suffer by waiting u n til the January 2010 trial and that keeping Wheels, Inc. in the lawsuit prevents the p o s s ib i li ty of piecemeal appeals. The court finds that the strong policy against piecemeal a p p e als outweighs any minimal harm Wheels, Inc. may endure in waiting the brief period u n til the trial of this case. Accordingly, Wheels, Inc.'s motion for final judgment is denied; w ith judgment to be entered at the close of the entire case. D. K in g and Siemens' Joint Motion for Summary Judgment on Punitive Damages is Denied as to King, and Granted as to Siemens

K in g and Siemens seek partial summary judgment as to Hoskins' punitive damage c la im . However, as this order dismisses Siemens from the case based on the court granting its motion for summary judgment as to both claims against it, the below analysis only 11

p ertains to punitive damages as they apply to King. Under South Carolina law, to support a n award of punitive damages, the plaintiff must show by clear and convincing evidence that a defendant's conduct was wilful, wanton, or in reckless disregard of the victims rights. C o h en v. Allendale Coca-Cola Bottling, Co., 351 S.E.2d 897, 900 (S.C. App. 1986). C o n d u c t is wilful, wanton, or reckless when committed with a deliberate intention and under s u c h circumstances that a person of ordinary prudence would be conscious of it as a reckless d is re g a rd of another's rights. Id. However, a defendant need not consciously realize that her a c ts invade the rights of another if a person of ordinary prudence would have come to that re a liz a tio n . Bryant v. Muskin Co., 873 F.2d 714 (4th Cir. 1989). 1. A Federal Standard Controls the Issue of Sending Punitive Damages to th e Jury

T h e parties disagree as to which standard controls sending the question of punitive d a m a g e s to the jury. Hoskins argues that the most recent South Carolina Supreme Court and C o u rt of Appeals cases control, and a court must submit the question of punitive damages to the jury mechanically when triggered by evidence of per se negligence. See Wise v. B ro a d w a y, 433 S.E.2d 857, 859 (S.C. 1993); Fairchild v. South Carolina Dept. of Transp., W L 2709393 (S.C. App. 2009). The Wise case explains the rationale for this policy as sta n d in g on the premise that one must know the law, and that violation of a safety statute w o u ld necessarily constitute "some evidence that the defendant acted recklessly, willfully, a n d wantonly." Id. From this proposition, the South Carolina Supreme Court determined th a t where the case presents evidence of a statutory violation, the jury would have a basis of 12

lia b ility for punitive damages and the question of punitive damages could not properly be w ith h e ld from the jury. T h e defendants assert that federal, not state, law controls the sufficiency of evidence to send punitive damages to the jury. The court agrees. "In a diversity action, or in any other la w s u it where state law provides the basis of decision, the propriety of an award of punitive d a m a g e s for the conduct in question, and the factors the jury may consider in determining th e ir amount, are questions of state law." Browning-Ferris Indus. of Vermont, Inc. v. Kelco D isp o sa l, Inc., 492 U.S. 257, 278 (1989). The Fourth Circuit has repeatedly held that in d iv e rsity cases, the federal standard controls the question of the sufficiency of evidence to g o to the jury. See Charleston Area Med. Ctr. v. Blue Cross and Blue Shield Mutual of Ohio, In c . et al., 6 F.3d 243, 247 (4th Cir. 1993)("In diversity cases in which the sufficiency of the e v id e n c e to create a jury question is presented, this court resolves the issue based on the f e d era l rule. That rule presents the question whether there is evidence on which a jury can p rop erly base a verdict."); Owens by Owens v. Bourns, Inc., 766 F.2d 145, 149 (4th Cir. 1 9 8 5 )("E v en under diversity jurisdiction the sufficiency of the evidence to create a jury q u e stio n is a matter governed by federal law."); Wratchford v. S.J. Groves & Sons, Co., 405 F .2 d 1061, 1064­65 (4th Cir. 1969)(applying Byrd v. Blue Ridge Rural Elec. Corp., 356 U.S. 5 2 5 (1958), and holding that the sufficiency of evidence to go to a jury is determined by a fe d era l standard); Summers v. Watkins Motor Lines, 323 F.2d 120, 123 (4th Cir. 1963)("In th e federal courts, distribution of functions between court and jury is controlled by federal,

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n o t state, law."). The precedent compels the conclusion that the sufficiency of the evidence f o r which the question of punitive damages can be submitted to a jury should be based on the f e d e ra l and not the state standard. 2. K in g 's Conduct Presents a Jury Question as to Punitive Damages

A s federal procedural law governs the disposition of this motion, Rule 56(c) supplies th e appropriate standard. Applied to the facts at hand, King would need to prove that the p a rtie s do not dispute any material facts and that King's actions do not rise to a level of w illf u l, wanton, or reckless conduct as a matter of law. The facts in the record prevent King f ro m making such a showing. While the court finds the material facts undisputed, these facts d o not lead the court to the conclusion that King's actions could not be characterized as w illf u l, wanton, or reckless as a matter of law. N o n e of King's individual actions leading up to the accident were in and of th e m s e lv e s necessarily reckless in isolation. However, taken in concert, a jury could find K in g 's actions willful, wanton, or reckless. King's counsel has taken pains to demonstrate th a t the stretch of highway where the accident occurred includes several elevation and course c h a n g es and presented the argument that such conditions made the accident more fortuitous in attempt to shift culpability off of King. However, the twist and gradient changes of the ro a d also cut the other way--prolonged inattention to the road under such circumstances c o u ld support an inference of recklessness. In light of evidence in the record that the cyclists w e re visible to other drivers for more than a mile, and King's deposition testimony as to the

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v a rie ty of distracting tasks she involved herself in up to and including the time of the c o llisio n , the court finds summary judgment on the matter of punitive damages inappropriate a s to King. E. K in g and Siemens' Motion for Partial Summary Judgment as to Hoskins' S u r v iv a l Claim is Granted

K ing and Siemens jointly moved for summary judgment as to Hoskins' survival claim; h o w e v e r, as this order dismisses Siemens from this case, the following only affects King. S o u th Carolina recognizes a cause of action for injuries to a person that survive the person's d e a th , with damages being recoverable by the legal representative of the deceased. S.C. C o d e Ann. § 15-5-90 (2005). Damages in a survival action include recovery for the d e c ea se d 's conscious pain and suffering and medical expenses. Croft v. Hall, 37 S.E.2d 537, 5 4 0 (S.C. 1946). Hoskins has not directed the court to any evidence in the record that would s u g g e s t that Thomas Hoskins survived the initial impact with the automobile. Accordingly, a w a rd in g damages for conscious pain and suffering experienced post-impact does not find s u p p o rt in the law. H o w e v e r , in addition to seeking the more established post-impact survival damages, H o k s in s seeks damages for the split-second between when the rear tire of the bicycle touched th e front bumper of the Pacifica and the impact of Thomas Hoskins on the windshield. H o w e v e r, this position does not find support under South Carolina law. Hoskins has cited m an y cases, from other jurisdictions which recognize recovery for pre-impact fright. In n e a rly all of these cases the victims knew they were going to die for a period of at least some 15

s e c o n d s, not fractions of a second. Moreover, there was evidence in almost all of the cases th a t the victim saw their ending coming and there was no question that the victim consciously p e rc e iv e d the cause of his or her death--such as a car crashing in to the back of a tractor tra ile r, an imminent plane crash, or a pedestrian trapped on roadway. In this case the King's car closed from the rear at a high rate of speed, causing a tre m e n d o u s impact--throwing Thomas Hoskins seventy-five feet in the air--and instantly k illin g him. A survival claim requires that the deceased consciously endure pain and s u f f erin g . Due to the severity of the impact, the court finds that the evidence does not d e m o n s tra te that the decedent had time to consciously perceive the means of his death, much less consciously suffer pain. Accordingly, for the reasons above, King's motion for summary ju d g m e n t regarding the survival action is granted. The court also hereby deems Siemens' m o tio n for summary judgment regarding the survival action moot. III. C o n c lu s io n B a se d on the foregoing, the court grants Siemens' motion for summary judgment [dkt. # 80]; denies Hoskins' motion to compel [dkt. # 87]; finds Siemens' motion for protective o rd e r and request for costs moot [dkt. # 83]; denies Wheels, Inc.'s motion for final judgment [ d k t. # 121]; denies King's motion for summary judgment concerning punitive damages [dkt. # 123]; and grants King's motion for summary judgment regarding the survival claim [dkt. # 122]. T h e remainder of the issues in the case are scheduled for the January/February term

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o f court, with jury selection on January 12, 2010. IT IS SO ORDERED.

N o v em b er 16, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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